On Aug. 12, 2017, a group of white supremacists gathered in Charlottesville, Virginia. The day was a disaster, with violence in the streets and Heather Heyer murdered by a man who drove his car into a crowd of anti-racist protesters.  The ACLU of Virginia had represented Jason Kessler, the march organizer, in a First Amendment lawsuit when city officials attempted to move the location of the event. The ACLU’s representation of Kessler has renewed debate, both inside and outside the organization, about its role as a prominent defender of both free speech and racial justice. With white supremacy rearing its head, can the same organization effectively advance both principles?

Dennis Parker, director of the ACLU Racial Justice Program, and Ben Wizner, director of the organization’s Speech, Privacy, and Technology Project, reflect on the ongoing debate.

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LEE ROWLAND
[00:00:05] I’m Lee Rowland and, from the ACLU, this is At Liberty: the podcast where we discuss today’s most important civil rights and civil liberties questions.

[00:00:23] On August 12, 2017, a now infamous gathering of racists, Confederate supporters, KKK sympathizers, and Neo-Nazis gathered in Charlottesville, Virginia. Local resident Jason Kessler had obtained a permit for the group to rally around a statue of Confederate General Robert E. Lee in the city's Emancipation Park. The day was a disaster. City officials declared the assembly unlawful before it even began, dispersing the planned ralliers and, an even greater number of counter-protesters, into the streets. Violence erupted throughout the city and Heather Heyer was murdered by a man who drove his car into a crowd of anti–racists.

[00:01:07] Prior to the rally, THE ACLU of Virginia had successfully represented Kessler in court in a First Amendment lawsuit when, just days before the widely planned event, city officials attempted to revoke the group's permit to force them away from Emancipation Park. The ACLU’s representation of Kessler has renewed debate — internally and externally — about the ACLU’s role as an organization dedicated to free speech and racial justice.

[00:01:37] Can an organization be truly dedicated to both equality and liberty? One year out from Charlottesville, we’re in the studio with probably the two best people to have exactly that discussion. Dennis Parker is director of the ACLU’s Racial Justice Program, and Ben Wizner directs the group's Speech, Privacy, and Technology Project. And in the interest of full disclosure, I myself was a free speech attorney at the national ACLU for much of my career. So Ben and Dennis are both my friends and former colleagues. Dennis, Ben, welcome.

DENNIS PARKER
[00:02:13] Thank you.

BEN WIZNER
[00:02:14] Thanks, Lee.

LEE
[00:02:15] Before we delve into the heart of Charlottesville and the issues it raises, tell me — and Dennis maybe I'll start with you — do you generally see your work fighting racial discrimination as fundamentally in tension with the other work of the ACLU fighting for free expression?

DENNIS
[00:02:34] No, I don't think it's it's fundamentally in tension. In fact, much of our work is done with Ben's project, and we've been able to use their work to support the actions of communities of color trying to protect their interests. So it's not necessarily in tension. I think part of the problem has come up, both internally and externally, with the perception that if there is a conservative reactionary racist group, that those are the cases that the ACLU is associated with doing. And I think part of what we have to do is to find a way to tell the whole story of what we do, but also internally look at the way we operate to make sure that you know we always protect the interest of the communities of color and make sure that they can exercise free speech. But that requires really a careful approach. And that's been the subject of the discussions we've had internally and externally.

LEE
[00:03:44] Ben, how about you? Same question. How do you see, big picture, the ACLU’s work on speech and race fitting together?

BEN
[00:03:54] I think it's an important question and I want to say at the outset that I both understand and experience the feelings and emotions on all sides of this issue. My mother is a Holocaust survivor. In the 1970s, when the ACLU represented Neo-Nazis who wanted to march through Skokie, Illinois, a neighborhood of Holocaust survivors, my mother quit her membership of the ACLU.

[00:04:19] So even in my own family, the question — whether anti-discrimination and free expression are in tension with each other or in harmony — is something that we discuss and that we discussed in my childhood. My view has always been that the more power that we give to authorities to restrict or censor speech in any way, the worse that will be for communities that are powerless. One thing that I heard from colleagues after Charlottesville was that it was one thing for the ACLU to take on the cause of Nazis in Illinois in the 1970s — it was decades removed from World War II, it was an ocean away — and another thing for an ACLU affiliate to represent Neo-Nazis in 2017 when they had allies in the Department of Justice and the White House. And I understand that point of view.

[00:05:23] But what I said in response, and believe, is that it's precisely when Jeff Sessions is the Attorney General and Donald Trump is the president that I think that civil rights require that we stand up for strict enforcement of neutral rules. That when Jeff Sessions thinks about hate speech he's not thinking about the KKK, he's thinking about Black Lives Matter, he's thinking about BDS protesters of Israel. And so to me and, I think, in our daily work — while I recognize the emotional and political difficulty of representing people who we loathe — I think that our commitment to equality requires it.

DENNIS
[00:06:09] One thing I would like to push back a little bit on is just that concept of neutrality, because so often in American society neutrality operates to the detriment of communities of color. And so you can’t always assume that because you've established firm rights to free speech for Neo-Nazis in Charlottesville, that it will apply equally. I mean there's a lot of skepticism in African-American communities and it's earned skepticism. It's based on watching the difference between the reaction of the police in Ferguson, where they come in with, with military grade weapons, and in Charlottesville, where they step back. And so even if the law is theoretically on your side, what happens in practice isn't always. And I think that that's part of the reason for the tension.

BEN
[00:06:58] I agree with that 100 percent – that First Amendment protections, like all other rules, are going to be disproportionately enjoyed by people of power and privilege. And what we've seen on college campuses around the country — and I think this underscores your point, Dennis — is that the speakers who are being censored on college campuses now are Palestinian rights advocates, who are pushing for changes in Israeli policy, that it's usually progressive speakers. And the only point that I'm trying to make is not that neutral rules will be applied neutrally, but that giving more discretion to those decision makers gives them more tools to favor the privileged.

LEE
[00:07:45] Dennis, I'm assuming that when you came to work for the ACLU you knew that this was an organization that wasn't just a racial justice organization, but had a history that included incidents like Skokie. Can you say what that meant to you, was that a feature or a bug? You know, did it give you hesitation about doing racial justice work within an organization that has such a broad mandate that includes, you know, a Skokie?

DENNIS
[00:08:10] It gave me enormous pause, and I spent a lot of time thinking about it. And you know in all of my jobs earlier, it was a little bit more clear cut. And it's not to say that I didn't understand the First Amendment, but I also understood that there were very compelling things about the 14th Amendment and about other anti-discrimination laws — about what happens in schools, what happens in the street – really the many ways that people of color have been denied the opportunity, the opportunity to live: to go to a school and not have to worry about being harassed, and not have to worry about having the police called on you because you're falling asleep in the lounge of your dorm.

[00:08:53] And so I guess I did have a predisposition to be less concerned about the rights of a group of people who would like to see me dead than I am the rights of people like me who want the same opportunity to live. And I'm not saying obviously that there is anyone who would support one over the other in the work that we do in speech, but it did complicate it. It is a much more complicated place to work than the NAACP Legal Defense Fund. And our mission seemed clearer, and the way that we could accomplish it seemed clearer, and it's more complicated here.

LEE
[00:09:39] You said at the beginning that that work requires a careful approach if and when it's done. And by work I mean defending people that have a worldview that is fundamentally at odds with say some of the ACLU civil rights work. What do you mean by that careful approach? And what's your role in it?

DENNIS
[00:09:58] I think it means having a really nuanced approach to the way that we do the work, to recognize that when you represent particular groups, that there’s a cost, that the communities that I have been trying to build up a relationship with will have questions. You know, “You say that you are interested in pursuing racial justice but your organization represents neo-Nazis.” That's not an insane concern or a question for someone to have.

[00:10:30] And so it is important that we find ways to to make real what we are saying, which is that, it's one thing to say that the work makes it possible for Black Lives Matter to operate, but if it is just the “trickle down approach” that's not enough. And I think that it creates an obligation. And we have been trying, and I think in many cases successfully doing it, to make sure that we're trying to put that into practice. We're trying to make sure that the rights of protesters on behalf of people of color and immigrants and all of those groups get the attention they need. And sometimes that attention may be more than what is required for other groups.

LEE
[00:11:20] Ben, it's part of your job, I think, to weigh in and make decisions about if and when to bring really controversial cases that involve the First Amendment. Do you agree with what Dennis just said about the sensitivities, the harm, the approach that’s needed? How do you fold those concerns in to your decision-making process when you're the one making the call about where the ACLU’s resources might go on a free speech matter?

BEN
[00:11:48] I don't think Dennis said anything that I disagree with. And I want to say I would not want to do First Amendment work at an organization that wasn't also devoting huge amounts of resources to pursuing racial, gender, religious equality. I didn't come to the ACLU to work primarily on free expression issues, I came originally to the ACLU to work on prisoners’ rights and spent most of my work doing post 9/11 human rights work on behalf of torture victims, victims of surveillance, and only more recently have devoted most of my time to these issues. So I agree.

[00:12:32] I think what's sometimes frustrating for both me and Dennis — although it's understandable — is how much attention the very rare cases in which ACLU affiliates take on representation of white supremacists get relative to the daily work of our organization. And, as Dennis said before, the racial justice and free speech teams at the ACLU do a huge amount of work together. We're representing Latino farm workers in North Carolina whose free speech rights and free association rights to unionize are under threat. We've represented black belt environmental activists in Alabama who were protesting against coal ash spills in, near a historically black cemetery, and were sued in a frivolous defamation case. We represent Black Lives Matter activists who are under FBI surveillance.

[00:13:28] And so really the lion's share of the free expression work that we do at the ACLU is in harmony with and in support of the broader work of the organization. And I say that even as I also defend those very rare cases in which we take on representation of people we loathe because we worry that the erosion of rights at that end will ultimately affect all of us. And again I feel lucky that I have colleagues here who have built up so much trust with communities that are inclined to object to that work, that we're able to have those difficult conversations.

LEE
[00:14:15] Recently the media has reported on an internal ACLU document that sets out guidelines for taking cases where speech and race may be in tension. Ben can you tell me a little bit about that document and its purpose?

BEN
[00:14:31] Yeah this is a document that a bunch of people at the national ACLU and from our affiliates put together following the controversy of Charlottesville. Now the national ACLU can't dictate to our state affiliates whether to take a case or not. But there was a feeling that if we came up with a set of voluntary guidelines that made sure that before deciding either to represent offensive speakers or not to represent offensive speakers, that we went through various factors that included sensitivity to communities that were targeted by those speakers, that gave advice to affiliates on how to do community engagement, that gave advice about how to handle communications around those incidents, that it could be a useful tool for affiliates to use.

DENNIS
[00:15:19] It is ultimately a memo with which someone or everyone is going to be upset. I don't think you're going to be able to create something like that that's going to satisfy everyone. But it was important because it at least laid out those things which had not always been taken into consideration. And you know, listening to what Ben was saying a few minutes ago, you know, I do have to acknowledge progress that's been made. I mean there was a time when there were more people at the organization whose response to the question of whether to undertake representation was, “the answer to bad speech is more speech.” That's it. And that is not a satisfactory answer. That is actually not a nuanced answer. I've always said that someone who says that the people who raise these questions, it's because they don't understand the First Amendment.

[00:16:14] I say the exact opposite — that the person who is satisfied with that as an answer doesn't understand the nuances of not only the First Amendment, but the way that it interplays with the 14th Amendment. You know in the beginning Ben talked about the difference between Skokie and the United States now. And I think that this is a horrible situation that we're in now that in some ways seems unprecedented, although in other ways, the anguish that so many people feel now — the waking up every morning and wondering what new outrage is going to be perpetrated — that's what people of color have been experiencing forever.

BEN
[00:17:00] I appreciate those remarks, and I think the idea that more speech is the answer to bad speech as being the complete solution to this conundrum is not nuanced. I agree that it's shallow. But I do want to put in a few words for counter-speech here. You know, after the tragedy in Charlottesville, we saw some extraordinarily effective and impactful counter-speech. Within days of the events in Charlottesville and Trump's grotesque remarks, we saw the CEOs of all major corporations have to abandon Trump's advisory councils. We saw incredible citizen activism around the states of the former Confederacy that brought down monuments to slaveholders. We saw another white supremacist march in Boston just a few weeks later where counter protesters outnumbered white supremacists by a ratio of about 1000 to 1. And I think by most accounts the so-called alt-right is much weaker in 2018 than it was in 2017. So while it isn't an answer to all of the deep concerns that are raised by that speech, I don't think that we should retreat from the idea that counter speech is a very very important part of the answer.

DENNIS
[00:18:39] But you can't leave out that at the same time that those extraordinary things are happening, and I agree that they are important, that if anything, there seems to be a group of people who feel that there's more license to engage in that kind of conduct. That it's been normalized both by the response of the administration and by people, you know, I don't think that… I don't think that anything changed from a year ago when this happened in Charlottesville. I don't think that suddenly Neo-Nazis became a problem. I think this is a problem that we've always lived with and that this exposed it in a way that we hadn't seen before. And it did create that response. But there is also the danger of the opposite: that if you hear it so often that you get used to it; that there is a group of people who feel that in light of the president of the United States saying that there are good people on both sides, that that gives them license to behave in a way that is reprehensible. And I'm not suggesting that the suppression of speech is the answer to that, but to recognize that it moves in both directions.

BEN
[00:19:50] I think that's an important and provocative point. I will say that one place where I think attitudes have changed is in some majority communities. That, I think, many white Americans who are inclined to see the problem of white supremacism as some kind of historical artifact or fringe concept got to see the ugly face of it with people marching with torches and chanting and beating people with clubs.

LEE
[00:20:23] Dennis, I'm interested in how you think about hateful speech and the harms that it causes. Do you think that having hateful speech on display is more negative in the sense that people of color have to experience that? Or do you also see it in the vein of transparency in our being able to kind of, see it in the light and respond to it? Or is it some mixture of the two?

DENNIS
[00:20:51] Right. I feel a little bit like you're asking me whether I’d rather be hit by a bus or a truck. I was just speaking to someone about police in schools and the question of safety. And there were polls that were done that show that there's a huge disparity between how Black students and white students respond to the presence of police in schools. And Black and Latino students feel less safe when police are in school.

[00:21:24] You know there is something about hearing that you are inferior on a daily basis and having it shouted in your face that's difficult. And yes it is an important part of making a change to recognize the extent of the problem. Obviously, if it's something that's covered up, then it'll never be revealed, or it will never be healed. And a lot will depend on where we go from now. I'm not ready to say now that I think that that the cost isn’t justified. But it's a huge cost.

LEE
[00:22:01] If you were holding the pen and given the right to redraft the American Constitution, would you criminalize any band of hateful speech?

DENNIS
[00:22:14] I think I would recognize the danger. And my first thought would be well this is definitely going to be used against people who don't have the power. And so I might not do that, but it would be reluctant. You know there are other countries where they do and where it's seen as being a perfectly reasonable response. And you could at least argue that there is value to something that says this is something we as a people believe that you should not be allowed to do this thing. And I'm not sure I have the answer to how you measure one system versus the other. But I do recognize that there are enormous problems with trying to broadly outlaw something that's hard to define.

LEE
[00:23:08] Ben, the phrase hate speech is something that I think people use colloquially a lot. But does it have any recognized meaning under the law, and should it?

BEN
[00:23:22] Well, no, our existing First Amendment doctrine doesn't recognize a category called hate speech. It recognizes categories called incitement to violence, threats, harassment. There are categories of speech that cross over the line into really conduct that we don't allow.

[00:23:44] I want to go back to the question that you asked Dennis. You're holding the pen and you have to write the First and 14th amendments. And do you write them in the same way? And I want to say that if I believed that placing some restrictions on speech with respect to what people can say and about disparaging other groups would end racism, then I think I would be inclined to say that the equality of all people overrides that aspect of free expression. But I don't think any of us think that. We don't think that you abolish racism by criminalizing certain speech about race. In Germany, since World War II, for reasons that are very understandable, it's been a crime to engage in Holocaust denial and to engage in certain kinds of anti-Semitic speech. And we're now seeing the far-right racist anti-immigrant party in Germany stronger than it's ever been despite those prohibitions.

[00:24:56] And in that world, where I don't think that the restrictions on speech meaningfully reduce or eliminate people's experience of racism or anti-Semitism, and in fact can be turned around and weaponized against progressive communities, minority communities, dissident communities, I think that the balance that the United States has struck seems to me a better one.

LEE
[00:25:24] Ben, I'm interested if your more protective instincts extend fully to the college campus where the rules of the Constitution and the First Amendment apply. While there certainly are examples as you mentioned of, say, pro-Palestinian rights students being censored on college campuses, I think it's probably accurate to say that the majority of reported censorship incidents on college campuses do tend to occur against conservative provocateurs, often those who are seen as racist or trans-phobic. You think it's still better to fully protect that kind of speech on campus even when the targets of that speech, you know, may be walking through that on their way to class everyday?

BEN
[00:26:09] Well Lee, you know, the idea that people call students snowflakes and say that they're perpetually in search of safe spaces where their feelings can be protected doesn't at all account for the fact that college students, much more than the rest of us, are the ones who on a daily basis are thrust into situations where they have to have this hostile and unwelcome speech in their faces, in a place where they're trying to learn. So it's it's not an easy question.

[00:26:39] I mean, obviously these rules can't be uniform across all age groups. No one would suggest that elementary school students should be exposed to racist speech in a learning environment. I think that part of what we're trying to do in colleges, in universities, is have one foot in the world as it is and one foot in the world as it should be. But I don't think that we can use rules to protect them from some of the realities of that world. And I'm not confident that there is a way for us to enforce these kinds of codes and rules in a way that will protect minorities from racism while not boomeranging against us. I mean remember that during the Civil Rights movement, Civil Rights speakers were banned from campuses because it would offend the sensibilities of people in those southern segregated communities.

[00:27:38] And so, when we try to figure out what definition we would apply in order to keep students more protected from that kind of hostility, we have to imagine that standard being applied not just in a liberal bastion, like Boston or Berkeley, but also in deeply, deeply conservative communities who might use those rules to keep out other kinds of offensive speech.

LEE
[00:28:01] I want to ask you both about guns. I think one major difference between Skokie and Charlottesville, was the fact that many of the protesters in Virginia last August were armed Something that folks may not know historically about Skokie, is that the Nazis who were marching at that time actually pledged to be silent in addition to unarmed. Dennis, how do you think about the presence of guns in public gatherings, and does that change how you think about when speech is protected or should be?

DENNIS
[00:28:37] Well I think definitely the presence of guns is extremely disturbing. I mean because again that that's the kind of thing where there is no real neutrality. When you have an instance of of a black driver who is stopped, who says I have a gun, I have a license for the gun, it's here, and that person ends up dead, then it's hard for me to even discuss, you know, it as if I believe it is possible for gun laws to be enforced in a way that does not work to the detriment of communities of color. But I have to confess that I'm not a big Second Amendment, or at least the way that the courts have interpreted the Second Amendment. I think that that's incorrect. And I think that it's dangerous. And I think that adding guns and neo-Nazis is not my favorite combination.

LEE
[00:29:33] What about guns and, say, Black liberation fighters? How do you feel about a group like the Black Panthers that historically said, hey, we have to carry guns because the cops aren't going to protect us when we're out exercising our First Amendment rights? Does that power dynamic change how you think about having guns?

DENNIS
[00:29:49] I have to admit when I saw the movie about the Black Panthers and saw them surrounding police in Oakland and seeing police for once being respectful, it did complicate things for me. Again, I don't think that guns are the answer. But I think that there is an amazing imbalance that is part of the reason why there are so many problems in particularly communities of color.

LEE
[00:30:15] Ben. How do you think about guns? And how do they fit in to, at least in your view, a long-term strategy of protecting a robust right to protest in public?

BEN
[00:30:27] Well there was a lot of coverage after Charlottesville about how the ACLU had changed its position and would no longer represent protesters who were armed. I've never seen any evidence that in nearly 100 years the ACLU has ever knowingly represented protesters who were armed. The actual people who were represented by the ACLU of Virginia in that case actually said under oath that they were not going to be armed and that they were going to be peaceful. Whether that was true or not, I don't know. And whether the guns were brought by others... You know, I think that there is an enormous tension between the way the Second Amendment right to bear arms has been misinterpreted by our courts and First Amendment rights of freedom of speech and freedom of association. And I think that if courts continue to give too much weight to the Second Amendment, it's going to end up shrinking the First Amendment. If people in these open-carry states are able to bring assault weapons to protests, making it dangerous or impossible for the police to safely do their job of keeping protesters and counter-protesters safe from each other, then we're going to see a shrinking of First Amendment rights.

LEE
[00:31:45] Given all you've said about guns, if the Unite the Right organizers came to the ACLU this August with the same plans, with evidence that they were going to be pretty heavily armed, do you think the ACLU would make the same choice to represent them?

BEN
[00:32:01] Look, I think that if the Unite the Right protesters had told my colleagues in the ACLU of Virginia that they were going to be heavily armed, they wouldn't have represented them in 2017. I don't think that's a hard call. I think that's an easy call. What's a hard call is in what circumstances should an ACLU affiliate ever represent a group like that? And here, you know, I would say that speaking from my vantage point at the national ACLU, where we're really mainly looking for cases that are going to expand rights, that will set precedents, it would be very unlikely for us to get involved in one of these cases about whether a group should get a permit, whether the permit should be in this park or in that park.

[00:32:45] But I understand that if you are the ACLU of Virginia, or the ACLU of Louisiana, or the ACLU of Wyoming, where you have to make sure that the police in those jurisdictions respect the First Amendment and aren't able to,you know, turn down the permit for the lesbian biker club, that they might make a different determination. And they might say, if we don't get involved in this particular case, we're going to set a local precedent that makes it difficult for us to defend others’ rights. I think that what our internal conversations and guidelines have come up with is that there is no formulaic answer to that question. It will depend on all kinds of factors at play in the community, and maybe in some of these cases the ACLU will be representing counter-protesters instead of the protesters. I would just say that we need to approach that question with all of the sensitivity that Dennis has talked about in this conversation.

DENNIS
[00:33:42] I mean I agree that the important thing that came out of it is a recognition of the complexity of the issues and the need to look at all of the circumstances, to look at the whole range of consequences that occur, that look at all of the considerations that govern how we should react as an organization. And I'm hopeful that we continue to do that, and we do that in a way that looks at the changes that have occurred, that looks at imbalances of power, that looks at who is represented, who is unrepresented, all of the really complicated issues. And recognize that there isn't going to be a single answer. And that an important thing is to continue to be involved in the struggle to work through these really difficult questions.

LEE
[00:34:30] Thank you both so much for being with us today.

BEN
[00:34:33] Thank you, Lee.

DENNIS
[00:34:34] Thanks, Lee.

LEE
[00:34:41] You've been listening to At Liberty from the ACLU. Remember to subscribe wherever you get your podcasts. Thanks for listening.